Procedural Due Process, where there is deprivation of life, liberty or property the person is entitled to procedural due process (some form of notice or hearing).

Distinction btwn procedural DP & substantive DP;

Procedural DP; applies only where individual rights are being made.

Substantive DP; macro scale.

Deprivation of liberty;

Physical liberty; Freedom from bodily restraints; imprisonment;

Commitment to a mental institution; an adversary hearing must be provided b4 commitment to a mental institution against your will

Physical punishment; corporal punishment of pupils in school invaded liberty

Intangible liberty; rt to drive; practice your profession;

Defamation by gov. EX posting names of excessive drinker in a liquor store

Injury to reputation; injury to ones good reputation is not a deprivation of liberty interest unless the damage is so sever that cant get another job.

Rt to raise family.

Deprivation of Property;

Personal & real property;

State can’t let Creditors attach, garnish a person’s bank account or even temporarily block the account without requiring that there be a trial.

Government benefits;

If someone is applying for benefits and hasn’t yet rec’d them then person doesn’t have a property interest in those benefits.

Person is already getting benefits; then the person probably has a property interest in continuing to get them. Gov can’t terminate those benefits without giving him procedural DP. But state statute could say that benefits may be cut off at any time. This is valid. Then you don’t have a PDP claim.

Public education; there is a constitutionally protected property interest in the entitlement to continued attendance at a public school.

A significant suspension (10 day duration) cannot be imposed w/o at least a minimum hearing.

However, no evidentiary hearing is required if the student is dismissed for academic reasons.

Retention of a Drivers license; a state cannot revoke a drivers license w/o a hearing

Public employment; there is a property interest if the employment is under a tenure system, or there is a clear understanding either express or implies that the EE only be discharged with “cause”

However, there is NO property interest where a police officer held his position at the will of the public employer.

Prejudgment garnishment; this is garnishment of wages without notice or hearing violates procedural due process.

However, procedural due process is not required where there is no state action; EX lien creditors privately sell goods to foreclose a warehouse lien.

Type of process required;

If there is a judicial proceeding (where “Life” is involved); it requires that D has the right to counsel, fair & objective trial; rt to one appeal.

If non-judicial proceeding; where property & liberty are involved

Once it is decided that there is a sufficient deprivation of life, liberty or property, the next step is to decide what process is required. Look at the following safeguards to determine what procedural safeguards are necessary: Mathews v. Eldridge.

The private interest that will be affected by the official action

The risk of an erroneous. deprivation through the procedures used

The magnitude to the gov interest, including the fiscal and admin costs of a hearing

Irrebuttable presumption;

Civil proceedings

Criminal proceedings

Substantitive due process;

Non-fundamental Rights;

Economic Regulation; & “social welfare” regulations usually affect non-fundamental rights; so use MS. A statute will be struck down if it can be shown that the law arbitrarily and unreasonably regulated economic activity.

However if the statute is reasonable then it is within the states police power to regulate the activity. Look to see if the regulation is rationally related to a legitimate government interest.

Two requirements:

Legitimate state objective: health, safety & general welfare. State must be pursuing a legitimate objective or ends by reasonable means.

Ex. State may be pursuing legitimate objective when it takes names & addresses of all patients that rec’s prescription for certain drugs; even though the state is infringing on the patients rights to keep prescriptions information secret; b/c this right is not fundamental.

Rationally related; the means used are rationally related to a legitimate gov purpose/ends. Can’t be arbitrary or irrational.

Means chosen must be necessary to achieve the compelling interest. In other words there must not be any less restrictive means that would do the job as well.

Burden of Proof;

When SS is used, b/c a fundamental right is involved; the burden of proof shifts to the state to show that its pursuing a compelling objective and the means chosen are necessary to achieve that objective.

Examples:

1st amendment rights;

Rt to privacy aka the right to autonomy; rt to make own decisions. Highly personal matters his is derived from several Bill of Rights guarantees; aka PENUMBRA RIGHT.

Birth Control; Contraceptives; fundamental right. State can’t prohibit the use of contraceptive devices or the dispensing of contraceptives to people. (Also a right of marital privacy). Ct has also held that the rt to use contraceptives belongs to single as well as married persons. State can’t require that a pharmacist prescribe contraceptives. Less sure about whether minor have a fundamental right to contraceptives.

Abortion; (seems quasi fundamental’ b/c the fundamental right has been cut-back) the Casey approach rejected the trimester approach of Roe and instead adopted an “undue burden” standard rather than strict scrutiny. An undue burden exists where the purpose or effect of a state law places a substantial obstacles in the way of a woman’s right to access to seek an abortion b4 the fetus attains viability (viability occurs in the last trimester). A woman has a privacy interest in choosing to have abortion b4 viability. Subsequent to viability, the state may regulate and even proscribe abortion except where it is necessary for the preservation of the life or health of the mother.

No right to ban all pre-viability abortions, unless that which is necessary to safe the life of the mother.

Regulations; only permitted if it doesn’t place an undue burden on a woman’s right to choose a pre-viability abortion. Purpose can’t be to create a substantial obstacle.

However, parental consentmay be required b4 an unemancipated woman under the age of 18 obtains an abortion or a state may allow a “judicial bypass” whereby a minor may obtain an abortion with consent of a judge.

Public Funding; there is no independent right for an indigent woman to obtain government funding to finance abortions. Also, a state may prohibit all use of public facilities and public-employment staff in performing abortions.

Types of abortions; state probably has the right to place regulations on the types of abortions that are performed.

Family relations; a fundamental right exists for related persons to live together. This fundamental right does not apply to unrelated persons or homosexuals. Bowers, the ct refused to afford a right of privacy to consenting adults engaged in acts of sodomy.

Private education; parents have a right to privately educate their children outside the public school system.

Right to marry; the right to marry is deemed fundamental. Any interference requires a compelling interest.

No fundamental right to have consensual sex o/s of marriage. Adultery.

Adult sex:

Homosexual activity; no fundamental right to engage in sodomy.

O/s of marriage there is no established fundamental right. State can punish, prohibit adultery & fornication.

Obscene material; the right to possess obscene material in the privacy of one’s own home is protected.

However, the gov can restrict the sale, purchase, receipt, transport & distribution of obscene materials via the mail. The state can even criminalize private possession of child pornography.

Right to die; not a fundamental right. However, it is an established due process liberty interest that a person can’t not be forced to undergo unwanted medical procedures such as life support. The state has a countervailing interest in preserving life. A terminally ill patient has no liberty in committing suicide.

Right to travel; the interstate privileges and immunities clause, art IV §2 and the commerce clause mutually enforces the right of every citizen to travel freely from state to state. The right to move freely from state to state is a fundamental right.

However, reasonable residency requirements are valid for obtaining divorce as well as for obtaining reduced tuition at state universities.

Travel abroad; the right to travel internationally is not absolute and may be subject to certain restrictions and congress may authorize the President to restrict travel to certain counties or dangerous areas.

Right to vote; the fundament right of US citizen over age of 18 to vote extends to all federal, state and local elections as well as to primaries. Strict scrutiny review is used to adjudicate restrictions on the right to vote.

However, reasonable restrictions on age, residency (e.g. 30 days is valid), or payment of filing fees require only minimum rational basis scrutiny.

Basic principles;

A rule of “one person one vote” is generally followed. State cannot dilute the fundamental right to vote.

There must be equality in the distribution of the right to vote.

A poll tax as a prerequisite to vote violates equal protection & is unconstitutional.

Limiting voting for school board elections to parents of school children and or property owners is unconstitutional.

Exceptions; voting can be limited only to land owners for a special purpose “water storage district”

Takings clause; the 5th & 14th Amd provides that private property cannot be taken for public use without just compensation. A taking can occur by various methods: eminent domain, inverse condemnation or police power (where no compensation needs to be paid)

Taking v Regulation; where the state regulates for the health, welfare & safety of the general public under its police power then the gov action merely amounts to a regulation without payment of compensation. A taking occurs when there is an actual appropriation, destruction or physical invasion of ones property. An ordinance requiring landowners to install cable TV wires in all rental units (created a physical occupation)

Land use restrictions; in order not to constitute a taking, the land use regulation must substantially advance a legitimate state interest and not deny the owner all reasonably economically viable use of his land.

Ex a zoning law passed after the owner purchased the property was held to constitute a taking b/c the law precluded him from erecting any permanent structure on his land.

The courts use a balancing test to determine if there is a taking when the regulation merely decreases economic value.

EQUAL PROCTECTION its all about making classifications on people.

Constitutional basis

Source: The 14th Amd states: no state shall…deny to any person within its jurisdiction the equal protection of the laws.

Relationship btwn substantive due process & equal protection: the guarantee of substantive assures that a law will be fair & reasonable, not arbitrary. Equal protection review is triggered where persons similarly situated are treated differently.

Substantitive Due Process: applies where a law affects the rights of ALL persons with respect to a specific activity (state law prohibiting the sale of birth control devices to unmarried persons except by prescription)

Equal Protection; applies where a law affects the rights of SOME persons with respect to a specific activity (state law prohibits the sale of birth control to unmarried persons)

Standards of Review;

Strict scrutiny; burden of persuasion is on the GOV.

Must be necessary (necessary means that there is no less restrictive alternative available)

To further a compelling interest

Applies to:

Suspect classes;

Race

Alienage

National origin

Differentiated between suspect class & Fundamental rights;

Right to vote

Travel

Right to privacy

1st amd rights

Intermediate scrutiny; burden of persuasion is on the GOV

Must be substantially (means exceedingly persuasive justification must be shown) related to an important gov interest/objective.

Applies to:

Quasi suspect classifications

Gender

Illegitimacy

Content neutral (time place manner) regulations on speech

Minimum Scrutiny; burden of persuasion is on the plaintiff to show:

The law being challenged is not rationally (means that the law cannot be arbitrary) related to a legitimate gov interest.

Any police power regulation that furthers a health, welfare. Safety or welfare purpose will be found legitimate.

Race & national origin; SS applies to classifications based on race & n.o. State must show that the measure is necessary & to a compelling interest.

Traits showing suspect ness:

Immutability; unchangeable trait.

Stereotype; prevalence of falsity; this make finding suspect ness more likely.

Racial or ethnic classifications; state law cannot prohibit interracial marriages or interracial cohabitations

Segregation: must be De Jure (intentional gov action).

Housing; zoning cant require that all gov.-subsidized housing be built in the heavily black part of town, if the intent of the zoning is to maintain racial classifications.

School segregation; a de jure segregation violates equal protection. Also plan to eliminate desegregation e.g. closing all public schools is unconstitutional.

Busing; court ordered busing is constitutional where it is implemented to remedy past discrimination in a particular school system. Court order busing is a temporary measure, which must be eliminated once the vestiges of past discrimination have been removed.

Remedy is usually an injunction.

Affirmative action;

Any race based affirmative action programs designed to remedy past discrimination whether enacted by a state municipality or even the federal government is subject to ss. This rule applies to any “benign” (intending to benefit) or compensatory, program by any gov entity, which either favors or discriminates against racial or ethnic minorities.

Remedying past discrimination in a particular gov institution is generally viewed as a compelling interest, but attempting to remedy general societal injustice through affirmative action is not.

If the gov is trying to redress past discrimination; there must be “clear evidence” that is discrimination in fact occurred.

Trying to get a balanced work force or racial diversity is not a compelling interest.

Redressing past discrimination by society as a whole will not suffice. There must be past discrimination closely related to the problem, typically discrimination by the gov.

Preferential admissions;

Cts will use SS; even if no quotas. Schools can probably recruit blacks but can’t systematically prefer them.

Quotas;

An inflexible number of admissions slots, dollar amounts will be struck down even where the gov is trying to eradicate the effects of past discrimination. Cts will say this is not necessary to remedy discrimination b/c more flexible goals can do the job.

Race or ethnic origin may be considered a factor in admission programs; but the use of quotas is disfavored and will be struck down as not being necessary to promote racial equality or educational diversity.

Discrimination by private employers is not subject to equal protection, but there may be a restriction under the 13th amd.

Racial gerrymandering;

Alienage;

Compare with national origin:

If discriminated b/c person is not yet a citizen then there is an alienage issue. Vs a person who has been naturalized and discriminated b/c of where he cam from.

A state law prohibiting aliens from owning property is invalid.

A state law denying commercial fishing licenses to resident aliens who were ineligible for citizenship is invalid.

A state law was held invalid that excluded financial assistance for higher education to aliens who were eligible for US citizenship as not furthering any compelling state interest

Exceptions;

Statute requiring stat police officers to be citizens is valid

Aliens may be denied positions as public school teachers b/c they may influence students views toward gov and the political process.

Illegal aliens; are not a suspect class. Rational basis of analysis is applied

However, illegal alien children have a right to free public elementary & secondary education.

QUASI-SUSPECT CLASSIFICATION: MIDDLE TRIER REVIEW

Gender; quasi-suspect and violates equal protection if not substantially related to important government interest.

Male/female; statute which forbad male from drinking but permitted females was not substantially related to an important government interest.

Look to see if the statute was

Invidious –intending to harm (woman or aman)

Or benign intending to help or intended to remedy past discrimination.

Intentional or purposeful discrimination is required to trigger middle tier scrutiny; just as discussed regarding race

Discrimination against women; a state law given preference to men to be an executor of an estate where a woman is equally qualified is held unconstitutional.

Discrimination against men; unconstitutional to make a law providing alimony for women but not for men

Can make a law which allows an unwed mother, but not an unwed father to block the adoption of a child

Excluding males from nursing school violated a male’s rights to equal protection.

However; its ok that only male have to register for selective service/military

Statutory rape laws that punished the male participants not the female accessory were upheld b/c it furthered an important state interest in preventing teenage pregnancy.

Benign sex discrimination; laws are generally upheld as being substantially related to important gov objective of ameliorating past gender-based discrimination. Social security statutes and tax exemptions that entitle women to greater benefits were upheld

Naval discharge procedures, which required male officers who were twice, denied promotion , to be automatically discharged whereas female officers were not was upheld because in the past men were afforded grater promotional opportunities than woman.

Illegitimacy; quasi suspect classification;

Classification must be substantially related to an important state interest. Classifications which favor legitimate & disfavor illegitimates are generally struck down since the overriding gov. interest in this area is not to punish the offspring of an illicit relationship.

Wrongful death; ct struck down a state law which permitted legitimate children but not illegitimate children to maintain a wrongful death action.

Workmen’s comp; state cant exclude illegitimate children from sharing equally with other children in a worker comp death benefits.

Welfare benefits; illegitimate children are entitled to welfare benefits.

However, a statute that requires the paternity of the father be proved during his lifetime is upheld as serving an important state interest in promoting a just & orderly disposition of property at death.

NON-SUSPECT CLASSIFICATION;

Age; is not a suspect class

Statute was upheld which required police officers to retire at age 50 even though they were physically fit as younger officers.

Poverty; poverty standing alone is not a suspect class. Wealth or lack of it is in a suspect class.

ex: city raises bus fares. No fundamental right is involved. Economic purpose for city. Poverty is not a suspect class.

Mental retardation; is not a quasi-suspect classification. Cleburne case. Mental retardation is not a quasi-suspect classification. So use a rational basis standard of review.

PRIVILEGES & IMMUNITIES CLAUSES

This clause prohibits states from discriminating against nonresidents with respect to essential activities or fundamental rights. Corporations and aliens are not citizens for purposes of art IV privileges & immunities.

Improper discrimination:

Statute requiring a nonresident commercial fisherman to pay a $2500 license fee to fish offshore while a resident fisherman paid only $25 license fee. State law invalid b/c it discriminated against nonresidents who were pursuing their livelihood.

Commuter tax paid to nonresidents who entered New Hampshire to work held invalid.

State statute imposing residency requirements on woman seeking an abortion held invalid b/c an individual has a fundamental right to seek medical care.

Alaska law requiring an employer to give hiring preferences to state residents held invalid; discrimination against nonresidents adversely affected an essential activity namely their pursuit of a livelihood.

Permissible discrimination;

State statute requiring a nonresident to pay $225 for a recreational hunting license while a resident hunter paid only $9 was permitted b/c it is within a states police power to regulate recreational noncommercial activities.

Discrimination against nonresidents is ok if purpose is to preserve natural state owned resources

Discrimination against a citizen or a resident triggers an art IV P & I vs. an economic discrimination against a business is a Commerce clause issue.

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